Wednesday, April 29, 2015
The ABA Rule 1.8(e) of Professional Conduct states in pertinent part:
(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:
(1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and
(2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.
In a recent article (here), Professor Philip Schrag argues that the rule is unethical:
This rule bars lawyers from assisting their low-income litigation clients with living expenses, such as food, shelter and medicine, though such clients may suffer or even die while waiting for a favorable litigation result. Because of its indifference to the humanitarian or charitable impulses of lawyers and its harsh effects on indigent clients, Rule 1.8(e) stands out as an unethical ethics rule. This article examines Rule 1.8(e) and its persistence, academic criticism notwithstanding, in the law of most states. It also suggests that the rationale for its continued enforcement rests primarily on concern for clients in contingent fee cases, and that the rule could be amended, rather than repealed outright, to narrow its scope, preserving its possible benefit while reducing its collateral damage.